UNPERFORMED AGREEMENT TO SELL REAL PROPERTY IS A TAKING UNDER THE FINANCIAL ELDER ABUSE ACT

A real estate agent had negotiated a four-page letter of intent for the purchase of property from an elderly lady in her late 80’s to a buyer. The buyer persuaded the elderly lady to execute the letter of intent and a few days later the real estate agent and buyer had her execute two sets of escrow instructions, even though no purchase contract had been signed by her. Later, she consulted an attorney who terminated the escrow for the property, in part because the terms of the letter of intent were not fair. The buyer filed suit and the court sided with the elderly lady because the Elder Abuse Act provides that financial elder abuse occurs when a person “takes” or “assists in the taking” of real property of an elder for a wrongful use or with intent to defraud.

ELDER ABUSE: FINANCIAL SCAMS AGAINST SENIORS

Financial fraud is the fastest growing form of elder abuse. Elder financial abuse is tough to combat, in part because most cases often go unreported. Many victims are confused, fearful, or embarrassed by the crime to report it. Keep an eye out for these common scams as follows:

Telemarketing or mail fraud. Scammers use the phone to conduct investment and credit card fraud, lottery scams, and identity theft.

Getting unauthorized access to funds. Alleged suitors woo older people, convincing them that love and care are their motivations for being included on bank accounts or property deeds.

Getting money or property through undue influence or fraud. Many victims have been duped into parting with their homes or other property because a scammer convinces them it is for their own good.

Doing unsolicited home repair work or no work at all. The scammers demand payment up front, and then often claim that their initial investigation reveals a more serious problem, with a more expensive solution.

ELDER’S DEEDS TO CAREGIVER’S CHILDREN ARE VOID

Here is a case where a homeowner and his wife having no children but the wife, from a previous marriage, has two sons, the “heirs.” After the death of the homeowner’s wife, a paid in-home caregiver was hired. A few short months later, the homeowner added the caregiver’s daughter as a joint tenant to the property by a grant deed. A few years later the homeowner quitclaimed his joint tenant interest in the property to the caregiver’s son. The next month, the homeowner died. The heirs, who lived out of state, hired an attorney who sued and declared that the joint tenancy grant deed and the quitclaim deed were void and of no legal effect. The trial judge agreed with the heirs and voided the grant deed and quitclaim deed. The judge ordered the return of the property back to the heirs.

This case is important because it reinforced the holding that Probate Code Section 21350 prohibits the children of a caregiver from receiving a gift of real property unless they prove by clear and convincing evidence that the transfer was not the result of fraud, duress, or undue influence.

THE COURTS FINALLY DECIDE WHAT IT MEANS TO ASSIST FINANCIAL ELDER ABUSE

The court hears a case of an elderly man who obtains a loan from a Lender secured by his real property.  After he deposits the loan proceed with the Lender, the elderly man falls victim to various scams, losses his money and dies.  The Lender also forecloses on his real property.  The elderly man’s daughter files a lawsuit against the Lender, claiming that the loan was predatory and constituted financial elder abuse under the Welfare and Institutions Code Sections 15600 et. seq.  The lawsuit also alleges that the Lender assisted the scams by giving the elderly man blank wire transfer forms which he used to wire money to foreign accounts where the monies were lost.  The trial judge dismisses the lawsuit because the complaint did not allege any facts constituting financial Elder Abuse by the Lender.

In this case, the court defined that financial Elder Abuse occurs when one either takes, secretes or appropriates real property of an elder for a wrongful use, or assists in taking, secreting or appropriating real property of an elder for a wrongful use.  The court reasoned that the Lender did not persuade the Elder to borrow money at unfair or disadvantageous terms.  The court also reasoned the Lender was not liable for assisting the financial abuse because it did not know of the other third parties’ wrongful conduct.

THE STANDARD FOR CAPACITY TO EXECUTE A WILL OR TRUST IS THE SAME

In the case Andersen v. Hunt, 196 Cal.App.4th 722 (2011), Wayne Andersen had established a family trust with his first wife that named their children as sole remainder beneficiaries. Wayne’s wife passed away and he developed a relationship with Pauline Hunt. Wayne then had a serious stroke. Following the stroke, Wayne amended his trust four times, changed the beneficiary designations on his life insurance, and opened joint bank accounts with Pauline resulting in Pauline with majority of Wayne’s estate upon his death. Wayne’s children then sought to invalidate the documents that he signed after his stroke on the grounds that he lacked the requisite mental capacity when he executed them. Through the testimony of medical experts, the court held that Wayne was not likely competent to manage his financial affairs after his stroke and thus lacked the capacity to open joint accounts or change the beneficiary of his life insurance. These were not considered simple testamentary changes and were judged by the contractual capacity standard as defined in Probate Code Section 812 and Wayne did not meet that standard.

When we first encountered an issue with some legal matters surrounding a real estate transaction, we took a leap of faith and hired some real estate law attorneys to help us through the case. We had never worked with anyone of this nature before and were not sure what to expect. What we did find were people who helped to save the day in some pretty extraordinary and unexpected ways. Here are just three of those ways.

We Were Shown Unexpected Options

We were pretty sure that we understood how to proceed with the transaction. It was assumed that we would find some funding, sign some papers, and be done with the deal. Thank heavens we enlisted the help of some good real estate attorneys. They were amazing at analyzing our situation and showing us some of the options that we had never thought of or considered. Their knowledge of the real estate laws and industry made it possible for us to make the best choice for our situation.

We Saved a Lot of Money

By showing us ways to set up payments, work with the interest rates, and wrap up important costs into the overall mortgage, we were able to save ourselves a lot of money. Financial worries had plagued us for so long, so to have this kind of unexpected benefit was wonderful.

We Changed the Contract to Suit Our Needs

Never in my wildest dreams would I have thought about demanding certain changes to the contracts before signing them. Most real estate agents tend to push their clients through the process with sticky notes pointing to the places to sign so everyone can move on with their lives. Having the help of real estate lawyers was amazing because they showed us the weaknesses in the contract and helped us to shape it to the way we really wanted it before we put our pen to paper.

Some people wonder why lawyers make so much money. There are a lot of ways to answer that question, but the most logical and reasonable answer is that when you pay an attorney for their services, you are paying them for a something that you cannot do for yourself because you lack the needed knowledge.

In order to become a lawyer, one must spend years and years poring over law cases, historical accounts, and legislative processes. It is not easy and it is not something that everyone can feasibly do.

When you hire an attorney to help with your real estate issues, you are not really paying them for their time. We want you to remember that what you are really paying for is the unique knowledge that they posses about the niche of law you are in need of.

When you have someone knowledgeable like this in your corner, we know that things will move a lot more smoothly for you. Those years spent researching the ins and outs of the laws surrounding real estate transactions allows our representatives to help you in the following ways:

• Our learning makes it easier to gather the right evidence if things go sour.
• Our knowledge helps protect your rights.
• Our experience helps speed up the process.
• More money can be made or saved, depending on what is needed.
• We can show you all the different options available to you.
• You will never have to feel confused about what is happening and why it is happening.

This is just a small sampling of how the knowledge and expertise of our real estate attorneys can help you. Real estate law is anything but simple. There are many complexities that can get in the way of your goals. Having the right kind of help from our representatives who understand real estate law will help you to overcome all of these obstacles.